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Why the ESA is Wrong to Support SOPA

The Entertainment Software Association has reasserted their support of the anti-piracy legislation currently being debated in congress. The ESA’s members include giants in the video game and software industry such as Nintendo, Sony, EA and many more. Earlier reports suggesting some of these companies had withdrawn support from SOPA have turned out to be false.

In its statement, the ESA claims that ”As an industry of innovators and creators, we understand the importance of both technological innovation and content protection, and do not believe the two are mutually exclusive. Rogue websites — those singularly devoted to profiting from their blatant illegal piracy — restrict demand for legitimate video game products and services, thereby costing jobs.”

“Our industry needs effective remedies to address this specific problem, and we support the House and Senate proposals to achieve this objective. We are mindful of concerns raised about a negative impact on innovation. We look forward to working with the House and Senate, and all interested parties, to find the right balance and define useful remedies to combat willful wrongdoers that do not impede lawful product and business model innovation.”

No doubt piracy is a problem, and many of the rogue sites which the SOPA/PIPA legislation seeks to shut down exist for no other reason save to enable piracy of games, music, and film that other people and companies worked hard and spent money to create.

The issue is not that something should or should not be done – most interested parties can agree that some move to better cope with piracy threats is reasonable if not as pressing an issue as many in the entertainment industry argue.

The real problem is that the legislation in question goes too far, giving over too many powers to the government and giving away too much to the industry. So what are the problems with SOPA?

Intermediary Liability

SOPA sets up new rules for intermediary liability creating new stopgaps between the party accused of piracy and the party making the accusations. Under the new rules, the State Department could order intermediaries to block access to or censor the accused website without any due process. No court would be involved. The State Department could simply order a hosting company to shut down the offending website and it would be bound to do so by law.

The State Department Could Cut Off Funds to “Rogue” Websites

The State Department would have similar powers over access to funds and could cut off funds to so-called “rogue” sites without any legal steps taken. With the definition of “rogue” essentially left up to the entertainment industry and other powerful corporate interests, this has implications for basically everyone online. The line between ‘fair use’ and copyright infringement is hardly a bright one. You might be a pirate without even knowing it.

Under SOPA, it’s quite possible that the State Department could have decided that boingboing was in violation of copyright rules and ordered the site taken down – without any due process at all, at least in the traditional sense.

Welcome to the Firewall it Gets Worse Here Every Day

Now that you’re a rogue, what happens next? This is where the fun begins. A new national firewall will block access to your site and your terrorist rogue friends’ sites so that nobody can hurt the entertainment industry’s feelings. This is similar to firewalls in place in countries like Iran and Saudi Arabia and other, uhm, “rogue” states. America will be in good company.

Instead of the complaining party having to prove that you are guilty of piracy or IP violations, you will have to prove in court that your site isn’t in violation to get back online and out from behind the firewall. Guilty until proven innocent is also used in various dictatorial regimes across the globe.

SOPA isn’t just written by the entertainment industry, it’s administered by the entertainment industry.

Everything is market-based these days, and somehow that even applies to censorship. The term ‘market-based’ is taking on a distinctly Orwellian tone. With SOPA, it makes the leap.

The State Department may be in charge of this mess in name, but industry players are given free reign to put together their own lists of bad actors and rogues and provide those lists to ISP’s and web hosting companies who will then, under the law, be required to block or take down accused websites. In other words, Ralph Lauren doesn’t even need the government to go after boingboing under SOPA – they’ll be sheriff’s deputies with the full backing of the law.

Linkbait

Under SOPA, even linking to an offending website can get you taken offline. The definition of copyright infringement would become so loose that simply associating yourself with a site that has been accused of violating IP is enough to make you guilty, too. Aiding and abetting enemy has never been so easy.

So if I just link to that boingboing post I link to above, and then Ralph Lauren uses their new SOPA powers to take boingboing offline, they can then come after me and make sure that I take out that link or get shut down too.

Bad Mojo

I’m sure at this point you’re getting a pretty good picture of the landscape of the future internet if the entertainment industry and their friends in government get their way.

So think about it: what would happen to platforms like Twitter and Facebook and Youtube if we no longer had the ability to share with one another? If we all lived in fear that our links or funny pictures or clever videos could get us or the site we were socializing on taken offline, how would we interact online at all?

What if every writer and blogger and artist and humorist on the internet could no longer share with or link to one another for fear of censorship at the hands of the entertainment industry itself? What little trust exists between us would evaporate.

This is bad legislation written behind closed doors by an industry that is already highly profitable. There is no clear and present danger to the video game industry which is growing faster than ever.

The music industry has shifted enormously in the past decade, but it’s still growing and more artists than ever are sharing in the wealth. And the film industry has new legs thanks to HD technology, internet streaming services, and 3D.

SOPA and PIPA are the wrong bills to protect IP from pirates and teenage kids who can’t afford the media they want to consume. It’s an overreaction that would break the internet and pit everyone against everyone.

The days of online innovation and social media would come to an end as the sheer weight of the law and the threat of censorship would grind everything to a halt. Hackers might fight back, but the vast majority of people would simply be left two decades in the past.

The ESA should work to back legislation that would help protect their IP without shutting down the very thing that their most loyal fans value most. The gaming industry was a $67 billion dollar industry in 2010. It’s expected to exceed $112 billion by 2015.

Piracy can and does effect some of these companies and new ways to combat piracy are constantly being developed. But it’s obvious that games are going nowhere fast. IP pirates aren’t about to sink gaming even if they do cause headaches and make the cost of games higher for the rest of us.

We need to take the threat of piracy seriously but we need to take the threat of government and corporate censorship more seriously. There are other choices for the ESA and other supporters of these laws to get behind, like the OPEN Act - a flawed but reasonable piece of legislation which achieves many important victories over piracy without the use of censorship.

In the end, I truly believe that these laws will hurt, rather than help, even the industries backing and supposedly benefiting from SOPA/PIPA.

So call your congress-critter or your video game developer and ask them to support better legislation.

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